Evelyn Douek, a professor at Stanford Law School, writes in The Atlantic about the international appetite to regulate social media, a fact that Elon Musk seemed not to anticipate.
She writes:
In the coming weeks, Musk is in for some surprising meetings and phone calls, it seems (if anyone’s left in the Twitter legal department to set up those meetings or calls). Canada’s C-11 bill, also known as the Online Streaming Act, would greatly increase governmental control over online content, and it is part of a wave of new internet-speech laws now being debated or implemented in countries around the world….
Since then, Musk has made numerous statements about his plans to change how the platform moderates content—that is, how it treats the material that its users post on its site. Most of these plans seem to involve taking a lot less content down. The mercurial Musk might not actually follow through on these thought bubbles; making good on his vow to “defeat the spam bots,” for example, would require Twitter to shut down more accounts, not fewer. But the overall tenor of his comments reflects a certain nostalgia for the more libertarian early days of social media. Musk seems to believe that “the tweets must flow,” as one of Twitter’s co-founders famously declared in 2011.
But the halcyon days of social-media platforms’ youth are over, and the regulatory landscape that these platforms grew up in is gone forever. In fact, contrary to common understanding, social media has never been unregulated. As the Georgetown professor Anupam Chander has argued, “Law made Silicon Valley,” by intentionally giving platforms a wide berth in how they treated content on their website. The centerpiece of this approach is the now-famous Section 230, which immunizes platforms from liability for most of their content-moderation choices. No other country has been as hands-off as the United States, but platforms have enjoyed substantial regulatory leeway in much of the rest of the world too. Now, amid a widespread belief that the tech giants are changing society for the worse, many jurisdictions are looking for ways to rein them in. And in many places, they are succeeding.
In the U.S., members of Congress have introduced a pile of bills to amend Section 230, but even if none becomes law, the legal framework in which internet platforms operate appears to be on shaky ground. In October, the Supreme Court agreed to hear two cases that may dramatically narrow Section 230’s scope and expose platforms to much more regulatory risk. In the first, Gonzalez v. Google, the relatives of an American student killed in a 2015 terrorist attack in Paris are suingYouTube’s parent company over Islamic State propaganda on the site. The Court will decide whether social-media platforms become liable for users’ content if they algorithmically recommend it to other users. If the justices say yes, then Twitter could suddenly be on the hook for recommending defamatory speech or harassment or speech that supports terrorism. The impact of such a ruling on Musk’s platform could be enormous, because basically everything in most users’ Twitter feed is “recommended” in one form or another.
In the second case, Twitter v. Taamneh, the Court will decide whether platforms can be found to have aided and abetted terrorism if terrorist propaganda appears on their sites, notwithstanding the fact that platforms already remove a lot of such material. If both of these cases come out against the platforms, Musk’s apparent disdain for taking content down might quickly evaporate….
More regulation is coming across the Atlantic too. After Musk tweeted “the bird is freed” on Thursday, European Union Commissioner for Internal Market Thierry Breton responded with a friendly reminder: “👋 @elonmusk In Europe, the bird will fly by our 🇪🇺 rules. #DSA.” The hashtag referred to the EU’s new Digital Services Act, which was passed this year and will take effect over the next few years. The complicated and sweeping law imposes a wide variety of risk-assessment, auditing, transparency, and procedural obligations on large platforms and exposes them to massive fines if they don’t comply. Unlike with the Canadian bill, Musk at least has heard of this one. In May, a few weeks after Musk announced he was buying Twitter with much bravado, Breton released something that vaguely resembled a hostage video, shot just after he had explained the DSA in a discussion with Musk. In it, the two men shook hands, and an uncharacteristically obliging Musk told Breton, “I agree with everything you said, really.”
In short, Musk wants fewer limits on Twitter content, but the regulatory environment is changing in ways that he won’t like. Not only in the U.S., but internationally. Racists, haters, anti-vaxxers, anti-maskers, and conspiracy theorists might not find a congenial home on Twitter.
In addition tto regulators and courts, Musk will have to persuade the big advertisers whose revenue he needs that Twitter has not turned into a swamp of lies, hate, and propaganda.
